Recent Court Ruling Validates Two Public School Systems in Saskatchewan

While COVID-19 is dominating the news cycle, there are other stories out there. On March 25, for example, the Saskatchewan Court of Appeal ruled in a case involving a dispute between the public and separate school systems in Saskatchewan.

I’ve written on the case before in our print publication. It involves complex constitutional and practical issues that are beyond the scope of a simple blog post, but here’s a breakdown.

In 2003, a public school in Theodore was slated for closure by the local school board because of a declining student population. To avoid that happening, the town applied to join the separate system. That was subsequently done, and the school continues to operate today.

The provision for a separate system dates back to the British North America Act in 1867, and was designed to guarantee Catholic and/or Protestant students the right to be taught in a school of their faith when they lived in an area where they were in the minority.

Most provinces today have a single public system (or French and English systems in Quebec). In fact, Saskatchewan, Alberta and Ontario are the only provinces where separate systems still exist.

Concerned about the impact of the narrow constitutional provision allowing separate schools being broadened to permit them to accept students outside the faith Public Schools of Saskatchewan took legal action.

In 2017, Queens Bench Justice Donald Layh decided in favour of Public Schools Saskatchewan. In doing so, he cited a 2015 Supreme Court of Canada decision Mouvement laïque québécois v Saguenay that laid down some pretty firm limits on government support for religious activity.

Following Justice Layh’s decision, the Brad Wall government vowed to use the Notwithstanding clause to circumvent the ruling. While the government justified the move on the basis of parent choice, it reinforced a constitutional arrangement that isn’t reflective of modern society.

Canada today is much more culturally diverse than in 1867, with citizens from many different backgrounds and faiths. The Saskatchewan government does provide some operational funding for other faith-based schools, but it’s only 50 to 80 per cent of what the separate system receives. As well, the government provides no capital funding for those schools, while the capital needs of the separate system are fully funded.

In Saguenay the Supreme Court said very clearly that the state owed a duty of neutrality to Canadians in all matters of religion. In other words, governments should neither  discourage nor support religion in our society.

Those were key principles that Justice Layh highlighted in his ruling. But in overturning the decision the five appeal court judges focused primarily on financial considerations and side-stepped the broader constitutional issues.

One statement that leapt out for me in media reports on the judgement was: “What the public board in this case desires is a disruption to a fair and neutral process. It wants to introduce a form of discrimination, i.e., one based on religion.”

The statement strikes me as somewhat incongruous as the very essence of the separate systems that operate in Saskatchewan, Alberta and Ontario is discriminatory, in that they treat people of different faiths (and equally importantly, people of no faith) differently.

The Sask. Party government has indicated it would allow any small town public school faced with closure to move to the separate system if that’s what parents wanted to do. So what that essentially means is that, with support of the Court of Appeal ruling, Saskatchewan now has two public school systems.

When the Theodore school closure was announced in 2003, the K to 8 population was 42. It is now 27, with nine students being Catholic. To support the students, there are six staff: two teachers, a teacher principal, a librarian/secretary and two custodians — so one staff member for every  4.5 students.

Meanwhile, in Regina, Saskatoon and other larger centres single classes taught by one teacher typically have more students than the entire Theodore school. Is that fair? I guess I’ll leave that to parents with students in overcrowded classrooms to determine.

Because the Court of Appeal decision was unanimous, Public Schools of Saskatchewan face an uphill struggle in appealing to the Supreme Court. But they have announced the intention to appeal. Whether the court grants leave remains to be seen. But because of the important constitutional issues that are in play, I think the case deserves to be heard.